Indian Kanoon - Search engine for Indian Law

5. A fresh offence report was prepared against the petitioner as per Rule 44 of the BSF Rules. The petitioner was allegedly heard by the Commandant of the 34th Battalion on 26th May, 1997 in compliance with Rule 45 of the BSF Rules. The petitioner was now served with an order dated 26th May, 1997 issued by the officiating commandant of this battalion, informing him that he was charged under Sections 40 & 26 of the BSF Act, 1968 and that Shri P.S. Bhatti would prepare the record of evidence against him in compliance with Rule 48 of the BSF Rules.

14. It is vehemently contended that Rule 148 of the BSF Rules mandates that after the evidence for the prosecution and defence has been heard by the Security Force Court, it shall give its opinion as to whether the accused is guilty or not guilty of the charge or charges and consequently the SSFC had to record reasons in support of its findings. In the instant case, the court has recorded no reasons at all in support of the findings of guilt of the petitioner on the first and second charge. In this behalf Mr. Amit Kumar, learned counsel places reliance on the pronouncement of this court in 102 (2003) DLT 415 (DB) Nirmal Lakra & Anr. Vs. Union of India and the judgment dated 21st November, 2008 passed in LPA No.409/2004 Raj Kumar Vs. Union of India (Paras 14 & 15). It is contended that findings and sentence imposed on the petitioner is violative of the specific provisions in the rules and is legally not sustainable.

16. An additional ground to assail the proceedings of the SSFC urged on behalf of the petitioner is a challenge to the same based on violation of Rule 109 which casts a duty on the court as well as prosecutor to ensure that the rights of the accused are adequately protected. Sub rule (3) of Rule 109 requires that the court shall give reasonable facility to the accused in making his defence which, it is contended, the petitioner has been denied.

17. It has also been objected by the petitioner that Rule 134 of the BSF Rules was also violated for the reason that the evidence was not recorded in a language which the petitioner understood. A grievance is made that the petitioner was a lay person and was illiterate without having any knowledge of the English language who was not given any assistance by the friend appointed by the respondent.

20. It has been contended that under Rule 16 of the BSF Rules, 1968, disciplinary powers in respect of a person are vested in the commandant of the battalion where such person is posted. The petitioner had been only attached for certain duties with the 137th Battalion and as such, had been wrongly tried by the commandant of this battalion. The proceedings of the court were consequently found to be suffering from illegality by the DIG BSF, Siliguri, who passed the order dated 11th October, 1996 setting aside the SSFC.